The Court’s first line-drawing attempts re dangerous speech: the WWI prosecutions  Espionage Act made it a crime for any person to: (1)make false reports with intent to interfere with the military success of the US; (2) willfully cause or attempt to cause insubordination, disloyalty, mutiny or refusal of duty in the armed forces; or (3)willfully obstruct recruiting/enlistment service of the US Statute trying to prevent unreasonable interference with war effort. Speech could possibly interfere with WWI if it caused one of the prohibited results above. So there were prosecutions of speech based on the statute. WWI cases represent courts’ first attempts to draw lines be acceptable and unacceptable punishment of “dangerous” speech – i.e., does it really pose a danger per the statute or does the gov’t just not like it.

Shaffer & bad tendency  The “Bad Tendency” test:  Prevailing test in the lower courts for determining whether publications/speech violated the Espionage Act  Courts asked:  Did the speech have “the natural & probable tendency & effect as [was] calculated to produce the result condemned by statute.” If so, it violated the statute.  How does Shaffer’s speech “tend” to violate Espionage Act? How is it “calculated” to do so?  Are the court’s findings that Shaffer’s speech violates the Act worrisome?

Schenck v. United States – The birth of “clear & present danger”  The (constitutional) test (p.33): ◦ Whether the words used are in such circumstances and of such a nature that they create a clear & present danger that they will bring about the evil Congress is trying to protect against.  Is this test any different from the bad tendency test?  What did Ds do? How does Holmes find an intent to create a clear and present danger in Schenck?  Is this all that different from the approach in Shaffer?

Circumstances & speech - Holmes’s “fire” analogy in Schenck  “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.”  Why is the speech in this example so obviously unprotected? Would the outcome be different if the shout were true? If it involved a false shout in an open field?  What circumstances matter in this hypo and why? ◦ Does the analogy help to determine whether to punish Schenck’s speech?  Should wartimes circumstances change whether we are more/less willing to protect speech?